Public Protector Busisiwe Mkhwebane. File photo: ANA
Public Protector Busisiwe Mkhwebane. File photo: ANA

Axed public protector COO turns to ConCourt in bid to to be reinstated

By Bongani Nkosi Time of article published Jun 15, 2020

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Johannesburg - Axed Public Protector chief operations officer (COO) Basani Baloyi wants her job back immediately so she can challenge her former boss, Busisiwe Mkhwebane, and thwart her ongoing “wrongdoing”.

This submission has been made in Baloyi’s argument papers filed at the Constitutional Court.

Baloyi wanted the apex court to hear her application intended to have a ruling of the North Gauteng High Court that went against her set aside.  

Judge Mmonoa Teffo ruled last December that Baloyi’s application, which challenged what she argued was unlawful termination of her fixed-term employment contract, fell outside the jurisdiction of the High Court.

Baloyi should have launched her application at the Labour Court, ruled Judge Teffo.

But Baloyi held that Judge Teffo made a grave error in her judgment, on the grounds that her application concerned enforcement of an employment contract and not unfair dismissal per se. 

“The applicant chose to approach the High Court to enforce her contractual right, not an unfair dismissal claim before the CCMA or the Labour Court,” said Baloyi’s affidavit before the Constitutional Court. 

“No statute has divested the High Court of its jurisdiction to hear that claim. The High Court was wrong to conclude it lacked jurisdiction.”

The affidavit said legislation was clear that if a “claim is based on a right created by the terms of the contract, then the claim may be adjudicated by both the High Court and the Labour Court”.

Baloyi’s employment was terminated on 21 October 2019, just eight months into the job. She had been appointed as COO on a five-year, fixed-term contract.

Mkhwebane maintained that she fired for poor performance. Baloyi, on the other hand, insisted that she was shown the door for taking a stand against Mkhwebane’s “abuse of power”.

In a bid to convince the apex court of the urgency of the matter, Baloyi reiterated her allegations against Mkhwebane. 

“Baloyi makes the case that Mkhwebane has abused the power of her office by manipulating the conduct, content and timing of investigations for ulterior purposes; that she has made false statements in court papers …” said the affidavit. 

She also made a case that Mkhwebane “is biased (and) that she has an axe to grind against the President (Cyril Ramaphosa), the Minister of Public Enterprises (Pravin Gordhan) and (former) the head of IPID (Robert McBride)”.

The affidavit added: “In short, Baloyi’s application shows serious rot at the core of one of the Constitution’s most important institutions.

“Because the application involves allegations of the abuse of public power, it is almost by definition urgent.”

Baloyi wants to go back to her job to stop this “rot”. “Baloyi’s fixed-term contract expires in 2024,” said her court papers. 

“This is (the) time as COO that Baloyi cannot get back – and time that Mkhwebane is given to continue her current wrongdoing, but with a COO that might be less willing to challenge her.”

In her affidavit, Mkhwebane hit back against Baloyi’s submissions - insisting that she was fired for poor performance. 

She was aware as early as 31 July 2019 “that I was not happy with her performance”, said Mkhwebane.

Former CEO Vussy Mahlangu warned Baloyi in an August 2019 letter to refrain from arbitrarily changing agreed targets, resolutions and deadlines, a letter quoted by Mkhwebane showed. 

“I deny that the decision to annul her contract was taken for ulterior purpose and that there was a “wish” to get rid of her,” said Mkhwebane.

Mkhwebane also denied being biased against anyone. “I am not actively biased against the President, the Minister of Public Enterprises and other unidentified executives. 

“Instead, I perform my constitutional duties without fear, favour or prejudice.”

@BonganiNkosi87

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The Star

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